The Right to Bear Bazookas: A New Take on the Second Amendment

by Saul Cornell

Mr. Cornell is a professor of history at Ohio State University and author of A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (Oxford, 2006).

The Court of Appeals in the District of Columbia has decided to strike down a gun control law as a violation of the Second Amendment. The decision, known as Parker, casts aside more than 70 years of established jurisprudence. The Appeals Court’s revisionist reading of U.S. v. Miller, (1939) the controlling Supreme Court precedent, is highly problematic. According to the majority opinion in Parker, Miller was only concerned with the type of weapons protected by the Second Amendment. If the decision is not reversed it ought to mean plenty of new business for the manufactures of flame throwers, bazookas, and Stinger missiles who are certain to welcome the DC Court’s lunatic logic.

The Miller case has never been understood to protect weapons solely based on their military function. Miller applied a two-prong test to determine the relevance of the Second Amendment to gun laws. A weapon had to be both of a type typically associated with the militia and used in some activity reasonably connected with a well-regulated militia. The Miller court correctly realized that an exclusive focus on the type of weapon could lead to the absurd result implicit in the current Appeals Court’s ruling. Indeed, the federal courts moved quickly to reject this potentially perverse result in Cases v. United States (1942). If Miller’s rule only applied to the type of weapon and protected all militia-style weapons then “Congress would be prevented by the Second Amendment from regulating the possession or use by private persons . . . of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns.... It seems to us unlikely that the framers of the Amendment intended any such result.”

In contrast to the Parker decision, the Supreme Court in Miller wrote that the Second Amendment was crafted to “assure the continuation and render possible the effectiveness of such forces [as the militia]” and “it must be interpreted and applied with that end in view.” While it is true that the opinion discussed the expansive nature of the Founding era’s militia, it did not adopt the modern gun rights view that the unorganized militia is the same as the well-regulated militia protected by the Second Amendment. The universal militia esteemed by many of the Founders, and the more elite select militias favored by others in the Founding era, were both well-regulated, ie., controlled by law. The modern unorganized militia is by definition not well regulated.

Reactions to Miller among legal scholars at the time it was decided support the orthodox reading of the case. A contemporary report of the decision in the California Law Review at the time was typical. It noted that the Court “held that the right refers to the people as a collective body.” Thus, in U.S. v. Tot, (1942) another federal court held that “it is abundantly clear both from the discussions of this amendment contemporaneous with its proposal and adoption . . . that this amendment, unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power.” Tot’s collective rights reading of Miller soon became the standard interpretation of the meaning of the Second Amendment by the federal courts for the next seventy years.

Rather than apply the orthodox interpretation of Miller, the Parker court turned to a more recent case, U.S. v. Emerson. This controversial case was the first to assert that the Second Amendment was about the civilian use of firearms. Following the Emerson Court, the Parker Court relied more heavily on what was not said in the Miller decision, than what was said. “On the question whether the Second Amendment protects an individual or collective right, the Court’s opinion in Miller is most notable for what it omits.” Essentially, the Court in Parker decided to fill in the blanks with its own ideological preferences. This makes for bad law and even worse history. One might just as easily claim the Miller court did not use the collective rights language because it was so pervasive at the time that there was no need to belabor such an obvious point.

There is no need to listen to the sounds of silence to interpret Miller. The regulation of civilian weapons was, and always has been something to be regulated by the state subject to common law restrictions and the scope of the state’s broad, but not unlimited police powers. If the DC gun law is a bad policy it ought to be repealed, not struck down by activist conservative judges.

More Comments:

Peter K. Clarke -
10/9/2007

"The right to battle the government and fight off tyranny being essential to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

John R. Maass -
3/27/2007

Saul--what did you do with the money?!?! I never saw a dime of it-damn! JM

Jeff L. Wilson -
3/24/2007

The whole basis for the Miller ruling was not just bad law, it was factually incorrect in military utility of a sawed off shotgun. Ask any Marine who fought in Fallugia if a short barreled shotgun doesn't have military utility in house to house fighting?

Jeff L. Wilson -
3/24/2007

Please, the congress WAS the national government in the 1790s when the bill was drafted. The executive was a glorified clerk, and congress was our parliament, and we had just fought a long and very bloody war against a parliament. The people of the states had been able to do that because they were armed. In the light of this, it seems obvious that the founders understood this to be a basic right of any free people. How could they use arms to overthrow a government and then assert that only a branch of government, a national army (made up of state militias), should be allowed to bear arms? They wanted to be able to retain the ability in their local settings, to protect themselves from the possible (they believed probable) misuse of government power, as well as desiring the right to defend themselves in a nation with NO POLICE OR STANDING ARMY. Why is it so hard to understand? People today who own guns, including assault rifles, don't see themselves as a problem. The problem is Liberal lawyers and gun control advocates who read the exact same words ("The right of the people")in the first, second and fourth amendments, and magically decide that in the one case of the second amendment, the words weren't meant to protect the rights of individual people. That's very convenient logic, if your desire is to empower the national government and restrict peoples rights.

David Lawson -
3/23/2007

TRANSITIVE VERB: 1. To transgress or exceed the limits of; violate: infringe a contract; infringe a patent. 2. Obsolete To defeat; invalidate.
INTRANSITIVE VERB: To encroach on someone or something; engage in trespassing: an increased workload that infringed on his personal life.

Donald Meaker -
3/21/2007

The Constitution also gives the Congress the power to grant letters of Marque and Reprisal. Said power would only be meaningful if private entities would have access to ships with cannon. Ships with cannon are certainly a crew served weapon.

That is a basis for a claim for private ownership of crew served weapons, so that they may be made available to supplement US land and naval forces, as may be needed. State organized militia certainly have many uses for crew served weapons.

The unorganized militia was the only part of the national defense establishment able to effectively respond to 9/11. Members of the militia were able to organize themselves and take the fourth plane [flight 93] out before it reached its target. If only they had had sidearms! But the US FAA has, despite the Constitution, created "Victim Zones" in the sky, which the terrorists were able to exploit.

Weapons are now far less likely to cause death when used, because of the fantastic advance in medical technology. As witness, note the rather low death and casualty rates in Iraq [3000+], itself low compared to Vietnam [58,000+], low compared to WWII[~300,000], low compared to the Civil War [~620,000].

As for nuclear weapons....The cost is amazing. One must have a rather odd view of humanity if one thinks that the likes of Bill Gates will suddenly desire a nuclear weapon, and would then use it for mass murder.

Donald Meaker -
3/21/2007

The definition of Militia, as established by the Legislature is in Title 10, Section 311. It makes all men over 17 and less than 45 part of the militia, up to 65 if there is prior military training, and also includes women only if members of the National Guard. There is no deference given to the states to give them the ability to deny membership in the militia. Nor are District of Columbia residents excluded.

It should rather quickly be amended to add women NOT members of the national guard, and to add persons older than 45 with no military training, and persons older than 65.

The District of Columbia has National Guard units, so state control over the militia is not applicable here.

So, what is your definition of "infringed"?

Douglas M. Charles -
3/20/2007

"...there is no counterweight to Federal military might."

Yes there is. It's called the Congress's power to declare war and fund and raise and army versus the president as commander in chief. Read your Constitution.

The 2nd Amendment is there because Americans had traditionally feared standing armies, meaning the British army. Thus the basis of our national defense was the militia. It has nothing to do with being a counter to the federal government.

Clayton Earl Cramer -
3/20/2007

"Miller applied a two-prong test to determine the relevance of the Second Amendment to gun laws. A weapon had to be both of a type typically associated with the militia and used in some activity reasonably connected with a well-regulated militia."

Really! So where, exactly, in Miller did the Court explain that the defendants weren't members of a militia, and therefore the trial judge erred in ruling that the National Firearms Act violated the Second Amendment?

Nowhere. The Solicitor General wanted the Supreme Court to rule that the Second Amendment did not protect an individual right--and he didn't get that decision.

Miller is an astonishingly cagy decision. It did not rule that the Second Amendment applies only to members of the militia. If so, there should have been some statement to that affect, or at least a question along the lines of, "What National Guard unit or state militia unit did Miller belong to?"

It did not rule that a short-barreled shotgun was not a protected arm. It only claimed that the trial judge should have not taken this fact "under judicial notice," but should have sought expert testimony about this.

What Miller decided was the very narrowest possible basis for reinstating the indictment that had been quashed by the trial judge.

Chris Grant -
3/19/2007

Remember, then, that the right of The People to free speech must only apply to well-regulated state printing presses, and not to the individual citizens who may make vulgar use of it... (sarcasm).

Ben James Thompson -
3/19/2007

Cornell has correctly pointed out a weakness of the Parker decision. In that decision, the opinion has it that 'arms' is an open-ended term, and then restricts it to weapons suitable to the individual by divining the intent of the Second.

The correct approach is to look at the predominant meaning and use of 'arms' in legal documents at the time of the writing and passage of the Second.

In the Articles of Confederation, 'arms' are contrasted with 'field pieces', and with 'camp equipage'. Thomas Jefferson's proposed Virginia Constitution (second one) declared the right of freemen to the free use of arms on their property (a penciled-in addition added "and tenements", which would have extended the right to renters on the property they rented.

It has never been suggested that Jefferson was proposing a right to field pieces. One need only consult the meaning of 'arms' found in the examples in the OED. There is a constant thread throughout. The example nearest in time to the writing and passage of the Bill of Rights is quite clear (1797). It is restricted to military weapons for the individual.

This is understandable given the meaning of 'arms' traditionally. It derives from the PIE root 'ar', which means to fit to or join closely.

Thus 'arma', a mass noun (not countable), included all weapons for the individual (offensive and defensive, to include body armor: it particularly applied to shields) fitted to the individual, used in close combat with individuals, targetting individuals. Thus, it was contrasted with tela (the use of a net that was thrown), and with projectiles (such as arrows).

Even though a mass noun, with the disuse of body armor during the Revolutionary War, arms became particularly associated with firearms as paradigm cases (whereas before shields were the paradigm case). This is not to suggest that knives and bayonets were not also arms. But Jefferson, when detailing the seizure of muskets on their way to the Continental Army (the ship carrying them ran aground), he referred to the firearms countably as arms.

This meaning is reflected in other uses. For instance, while arms were made in armories, Jefferson pushed for the establishment of a foundry to make field pieces. Again, the modern extension of 'armory' to include a place for making cannon is just that, a modern extension at odds with 18th century usage.

Morover, Miller says of the militiamen that "when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time". That would seem to limit the types as well.

In summary, Cornell identifies a weakness of the Parker decision. The Parker decision did not avail itself of the scholarship concerning the meaning of 'arms' in late 18th century talk. Had it done so, it would have made clear that the bazookas of Cornell's imagination have no bearing whatsoever on the meaning of the Second Amendment.

This argument about bazookas, often deployed by collective rights theorists, has no basis in the language of the time. It merely takes the extended modern meaning of arms (as in arms industry for weapons industry) and reads it back into the Second.

It is the very restricted meaning of arms in 18th century language which in fact lends weight to the individual right interpretation, since it hardly makes sense that the authors of the Second thought that the militia as a whole had no need for field pieces.

Gregory Jackson -
3/19/2007

The explicit language of the amendment is not the only issue. Within every amendment lies the intent of the framers. A thorough reading of the founders will point out that the militia's purpose was to stand as a counterweight to federal power. When the Federal government has the power (whether implicit or tacit) to control the Militia (what is now the National Guard), there is no counterweight to Federal military might.

Daniel Boren -
3/19/2007

I thought that this was an anti-gun piece. Because of the title and how it started out. I would like to thank Saul Cornell for pointing out "Miller applied a two-prong test to determine the relevance of the Second Amendment to gun laws. A weapon had to be both of a type typically associated with the militia and used in some activity reasonably connected with a well-regulated militia." So you agree that every Ctizen should be allowed to own a "military style assault" typ firearm. Thank you for at least agreeing to that. As you have stated as long as it is worthy of use in the militia!

Joshua Gregg Swanson -
3/16/2007

I really don't think the framers intended to give 'the people' the right to keep and bear arms only in service to a militia that is 'well regulated' in the sense of government regulation. The notion is patently absurd given what our country had just gone through. You have government control/regulation on the brain; it is a sickness with people who read the 2nd the way you do.

I have a 'well-regulated' carbeurator on my old Chevy. It functions smoothly and delivers the right mix of air and gas. The government doesn't come around to check on it, EVER. I hope that in a time of crisis that will come (just hopefully not in my lifetime), the militia that my neighbors and I must form for mutual protection of life and property can be as well-regulated as that carbeurator.

I believe that the preamble to the 2nd was included to encourage citizens to take up marksmanship and other measures to prepare for a time when the need arises to become part of a 'well-regulated militia.'

Charles Norris -
3/16/2007

It never ceases to amaze me that otherwise educated individuals always confuse the military term "regular" or "regulated", as in the Second Amendment, with the legal term regulated or regulation. Both words do have their origins in the Latin root "Regis", that being a reference to the king, as in the kings laws or the kings soldiers. However, the term of military art "regulated", as in the Second Amendment, refers to the latter, the kings soldiers. "Well regulated" is a term that applies to the military condition of the militia. How comparable is the militias training, equipment and arms to the "Regulars"? The modern misconception that the use of the word "regulated", in the amendment, refers to gun control is merely wishful thinking and not historical or legal scholarship.

As well, this notion that the Second Amendment should always be interpreted, according to Chief Justice Berger, as having the word "Because" at the beginning begs the question that the word "therefore" should prefix and accompany the clause, "the right of the people to keep and bear arms shall not be infringed"? I rather think so.

Furthermore, the red herring that the amendment would allow bazookas and nuclear weapons as individual arms is absurd. Many weapons that are raised as red flags to the individual interpretation of the Second Amendment are, in fact, "Crew Served Weapons", that being weapons that take two or more men to operate. The bazooka is just such a weapon. It requires an operator and an ammo carrier and loader. It is not an individuals "arm" and is not considered a soldiers basic arm in the regulars or reserve.

The Second Amendment is the Cheshire Cat of the Bill of Rights. Regardless of who is interpreting the meaning of this amendment, there are always errors of language, psychology, fear, elitism and populism that prevent a true interpretation from "Getting there from here".

"Shall NOT be infringed" means precisely that which is written. Standing on perversely applied 'precedence' is like dancing in a minefield; sooner or later something is going to blow. (A major contributing factor to the American Revolution. Was British attempts to seize the colonists arms. In fact, it was the 'final straw' that broke the proverbial 'camel's back').

Earl David Quammen -
3/16/2007

"Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. The unlimited power of the sword is not in the hands of either the federal or state governments but, where I trust in God it will ever remain, in the hands of the people."

- Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.

(Mr. Coxe was a prominent Philadelphian and political economist who was named assistant secretary of the treasury in 1790, commissioner of revenue in 1792, and purveyor of public supplies in 1803).

"The First Law of Nature is that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war."

- Thomas Hobbs, "Leviathan", (Outlines the Laws of Nature), 1651

Pre-Constitution;

"The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."

- William Blackstone, 1 Commentaries on the Laws of England 136, 1765–1769.

Post Constitution;

"The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government...."

"....This may be considered as the true palladium of liberty....The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."

- St. George Tucker, Blackstone's Commentaries, (1803).

Would suggest that you study the issue more thoroughly, (or honestly).

Andrew Martin Walkowiak -
3/16/2007

I will admit Mr. Cornell's doing a much better job than most of trying to twist U.S v. Miller into the fallacious context of the "collective rights" interpretation of the Second Amendment. I guess that I should not expect less from a history professor. Unlike most anti-Second Amendment rights pundits, at least he attempts to provide a rationale, rather than merely repeat the "collective right" fallacy ad hominem. However I am afraid that he still falls flat on a few points in his reasoning.

It's definitely refreshing to see that Mr. Cornell acknowledges the truly wonderful ramifications of "militia suitability" in the first of the two-pronged "Miller test" that he claims that the Supreme Court applied: "A weapon had to be both of a type typically associated with the militia..." However, he (perhaps deliberately) misinterprets the second: "...and used in some activity reasonably connected with a well-regulated militia."

First off, as the Second Amendment clearly states, "the right of the people to keep and bear arms shall not be infringed." Unfortunately for Mr. Cornell and the second prong of the entire "Miller test", that pesky little comma makes this an independent clause. Ergo, the "right of the people" is NOT dependant on notions of a "well-regulated militia", however a well-regulated militia IS dependant on the notion that the people's right to keep and bear arms not be infringed.

Even should we give Mr. Cornell the benifit of the doubt and apply the U.S. v. Miller "militia test" the way he wants us to, a little research makes it patently clear that the Framers of the Constitution believed that "some activity reasonably connected with a well-regulated militia" was the common armed man going about his normal life and business during the times the militia was not actively needed.

And do I even need to quantify the level of cognitive dissonance required to believe that the other nine amendments in the Bill of Rights enumerates individual rights, yet the amendment the framers listed as the second most important one, does not?

I think I'll spare us.

And it's also easy to prove that in the time of the founding, that "well-regulated" was intended in the way one might say a quality watch or other mechanism is well-regulated, meaning that it requires a minimum of adjustment or upkeep. Hence the notion that the masses be in possession of their own private militia-capable arms with no need for input, upkeep, maintenance, or oversight from the government. It's pretty clear to me, and to anyone who'd bother to read the supporting documentation of the day, such as the Federalist papers, the anti-Federalist papers for that matter, or any of the other collected opinions of the Founders and Framers that the Second Amendment did not mean "well regulated" in the way that the IRS, EPA, ATF, DEA, FBI, HUD, DHS, DOE, DOT, and other alphabet-soup agencies mean it today…

Despite the documentary efforts of former Vice-President Al Gore, the true "Inconvenient Truth" for many these days seems to be the true nature and intent of the Second Amendment.

Frank Steven Silbermann -
3/16/2007

The Miller decision most specifically did _not_ mention the militia membership of the owner. (It questioned whether _a_ short-barreled shotgun had militia utility, and said nothing about its possessor.) In this they followed a state court precedent concerning a state constitution's right to keep and bear arms. (So that the newly freed slaves would not be able to afford handguns, the state law in question permitted only those handguns of highest quality which had been issued by the military. Confederate veterans already had theirs, and in any case, they never intended to enforce that law against whites.)

Why would the Supreme Court make such a useless ruling in the Miller case? The Supreme Court was intimidated by F.D.R.'s threat to pack the courts if they continued overturning his unconstitutional programs. So they sought to make the case go away while minimizing the damage to the Constitution their precedent would cause.

Therefore, we do indeed have a Constitutionally guaranteed (to the extent people respect the Constitution) right to own and carry conventional military-quality rifles and handguns. What about bazookas and nuclear bombs?

Obviously, a line must be drawn somewhere -- hence the admission of _reasonable_ regulation. Exactly where we draw the line is arbitrary, but the NRA has quite reasonably accepted the line being drawn at artillery, bombs, and full-auto machine-guns.

This is a reasonable position to take, and may be the only _honest_ reasonable position to take.

David Lawson -
3/16/2007

I read your book and frankly I'm not impressed with your arguments. You have been bought and paid for. What ever happened to intellectual honesty?

Regarding Miller, it has been mis-cited for the last 70 years as a collective rights ruling.

Jed A McKenney -
3/16/2007

Do you really think that the framers of the constitution meant for the people of this country to end up with single shot weapons... only to potentially have to battle a govt army that has much more capable weapons?

Our govt today is NOT likely to grant permission for us to own bazookas... but I strongly feel that our founding fathers intended on us to have equal arms as the govt so we could fight off tyranny more easily.

Of course our govt doesn't want us to own weapons that can be effective against them should that day ever come. That's why we keep having all these gun control laws. Every new restriction they put on our weapons, is one more step to the tyranny that our govt wants.

Carl L Lot -
3/16/2007

"casts aside more than 70 years of established jurisprudence" ? Let's make we have our facts straght.

FYI - In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court refused to take judicial notice that a short-barreled shotgun was useful for militia purposes. Nowhere did the court hold that an individual does not have a right to keep and bear arms. In United States v. Gomez, 81 F.3d 846, 850 n. 7 (9th Cir. 1996), Judge Kozinski opined that "The Second Amendment embodies the right to defend oneself and one’s home against physical attack." In United States v. Hutzell, 217 F.3d 966, 969 (8th Cir. 2000), the court held that "... an individual's right to bear arms is constitutionally protected, see United States v. Miller ...." In United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), the court examined United States v. Miller and held: "We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it protects the right of individuals ... to privately possess and bear their own firearms ...."